Colin Ferry v GHS Regional WA Pty Ltd T/A GHS Solutions

In the Federal Circuit Court of Australia, Colin Ferry, the applicant, filed an application for costs against GHS Regional WA Pty Ltd trading as GHS Solutions, the respondent. The applicant, who had previously successfully defended a proceeding brought by the respondent, sought an order for costs following the respondent's unsuccessful appeal against his defence. The respondent had commenced proceedings in the Federal Circuit Court seeking a declaration of copyright infringement and an account of profits in relation to the use of certain software. The applicant defended the claim, arguing that the software in question was not subject to copyright protection and that the respondent's claim was statute-barred. The primary judge dismissed the respondent's claim, and the respondent's subsequent appeal to the Full Court was dismissed.

The central issue before the court was whether the applicant was entitled to an order for costs pursuant to section 114 of the Federal Circuit and Family Court of Australia Act 1995. The respondent argued that the applicant was not entitled to costs as the matter was settled between the parties, and the court was not satisfied that the applicant had incurred costs in defending the respondent's claim. The court held that the applicant was entitled to an order for costs. It found that the applicant had incurred costs in defending the respondent's claim and that the respondent's appeal was not substantially different from the original proceedings, meaning the costs incurred in defending the appeal were also recoverable. The court concluded that the applicant was entitled to costs on an indemnity basis, as the respondent's appeal was without merit and had caused the applicant unnecessary expense.

The court ordered that GHS Regional WA Pty Ltd pay the applicant's costs of and incidental to the application for costs on an indemnity basis, with costs to be taxed if not agreed. The court also ordered that the respondent pay the applicant's costs of the appeal from the primary judge's decision on an indemnity basis. The court determined that the total costs incurred by the applicant amounted to $14,500, which was to be paid by the respondent within 28 days of the court's decision. The court's decision clarified the circumstances in which a party may be entitled to costs following the dismissal of an appeal and emphasised the importance of assessing the merits of an appeal before proceeding with it.